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Posted on Thursday, July 16th, 2015 by Peter Klenk

From our “Ask a Question” mailbag: I formed a Revocable Living Trust to avoid New York probate and named my two sons as the co-successor trustees. It seemed a good idea at the time, but now they are not speaking to one another. Should I change the trust?

Many New Yorkers have formed Revocable Living Trusts to avoid the expensive New York probate process. For the trust to work properly, after your death, you need a successor trustee to step in to pay your final bills, taxes and to then distribute the trust assets to your heirs.

What is often overlooked is that this same person will step in to serve as trustee if you are ever incapacitated. So not only should the successor trustee be a person who can tie up your estate matters, the trustee must also be someone who can handle your affairs if you get Alzheimer’s or dementia and require care for many years.

It is natural to turn to your children for this job. But, if your children do not get along, that arrangement can be a disaster. Each of them could retain an attorney and end up in court fighting about the smallest decisions—all being paid for out of your assets. If your children do not get along, and if you feel that picking one over the other would cause hurt feelings, then by all means select another person or entity to be the trustee.

A professional, such as your CPA, attorney, or a trust company will charge for the services—but that cost will be small compared to the litigation costs that will arise should your sons fail to cooperate with one another. Further, I find that it is always better for a family to avoid a conflict that might end up meaning they will not speak to each other. Let them be a little angry with one another, but don’t put them in a position where they fan that small anger into long term animosity.

If you have any other questions about Estate Planning in New York, feel free to contact our office for a free consultation.

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